State and federal law prohibit harassment on the basis of an individual’s actual or perceived race, religion, national origin, sex (including pregnancy), sexual orientation, age, citizenship status, work authorization status, disability, or other protected status, as identified in Board policy 5:10, Equal Employment Opportunity and Minority Recruitment. For the purpose of this procedure, sexual harassment includes harassment on the basis of sexual orientation, which means actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity. 

The person charged with conducting the internal harassment investigation must ascertain: (1) if the alleged conduct occurred; (2) if the conduct was unwelcome; (3) if the harassing conduct was based on any protected status of the complainant; and (4) whether the harassment created a hostile environment in that it had the purpose or effect of substantially interfering with the individual’s work performance or creating an intimidating, hostile, or offensive work environment. The questions that follow are designed to help the investigator uncover this evidence. The questions below serve as a general sample; they are not all-inclusive and the exact questions must be designed for the specific allegations in each case.

Did the alleged conduct occur?

Investigators should consider a number of factors in evaluating whether the complained of conduct occurred, such as:

1. The level of detail provided by the complainant/witness.  In certain cases, a witness’s ability to recall information may be impacted by past trauma.  Consider the use of a trauma-informed approach in these circumstances.;

2. The consistency within and between a witness’s statement(s).

3. The consistency between the witness’s statements and those of other witnesses.

4. Corroborating witnesses and other evidence.;

5. Body language/eye contact of the witness. In certain cases, the manner of a complainant’s body language/eye contact during an interview may be attributable to the complainant’s discomfort, rather than a lack of truthfulness.);

6. The existence of a pattern of similar past behavior/harassment complaints involving the alleged harasser.;

7. Does the witness have reason to be untruthful, such as a personal stake in the outcome?

8. Any corroborating documentation of the alleged conduct.

Is the conduct complained of unwelcome?

Unwelcome conduct is that verbal or physical conduct which the employee did not solicit or incite and that which the employee regarded as undesirable or offensive. The Equal Employment Opportunity Commission (EEOC) evaluates the issue of whether conduct was welcome on a case-by-case basis, considering the totality of the circumstances. The wise investigator will do the same.

Below are sample questions that can be used to formulate actual questions for this part of the investigation.

1. Who is the alleged harasser? What is the alleged harasser’s name? Is the alleged harasser a co-worker or a supervisor?

2. Is the conduct complained of physical, verbal, and/or committed using an electronic device, such as, through email, text message, or a social networking website? Obtain relevant details for each incident (the Five W’s: Who, What, Where, When, and Why).

3. If physical, describe with specificity the nature of the physical conduct. Inquire into all locations on the complainant’s body that were touched and ask when, how often, how the complainant was approached, who witnessed the physical conduct, and where was the complainant when the conduct took place? Did the physical conduct involve an injury to or destruction of the complainant’s possession(s) and, if so, what was the property, what was the nature of the injury, when did it happen, and where is the property now?

4. If the unwelcome conduct was verbal, what was stated, when, how often, where were the parties when the statements were made, and who witnessed the statements being made?

5. If the conduct was committed using an electronic device, e.g., through email, text message, or social networking website, what was stated, where, when, how often, who saw it? Does the complainant still have access to the emails, text messages, or social networking websites for the investigator’s review?

6. Did the complainant or any of the witnesses retain any evidence of the offensive conduct such as a picture, email message, text message, or video or audio recording? 

7. Was a complaint or protest made to anyone employed by the District or to anyone else? If so, to whom did the complainant complain, when was the complaint made, what was stated therein, and were there any witnesses to this or these complaints? 

8. What was the complainant’s response to the conduct? Did the complainant tell the alleged harasser to stop? Did the complainant complain to others about the alleged harasser’s behavior? Did the complainant ask co-workers, supervisors or managers to make the harassment stop? If so, obtain all relevant details (the Five W’s).

9. Did the complainant engage in any conduct with the alleged harasser that could have encouraged the alleged harasser’s behavior? If so, what was the conduct, when and where did it occur, how often and who witnessed it?

10. Did the complainant make the alleged harasser aware at the point when the conduct became unwelcome? If so, when, how was this done, what was communicated to the alleged harasser, and were there any witnesses?

11. Did the complainant complain about the harassment to the alleged harasser, to the complainant’s or alleged harasser’s supervisors, other managers or others? If so, when were the complaints made, what was said, who was present, and what was the response to each complaint?

12. If no prior complaints about the alleged harassment were made, why not?

13. What other actions, if any, did the complainant take to indicate to the alleged harasser that the alleged harasser’s conduct was unwelcome?

14. If they lack knowledge about the harassment, did co-workers, supervisors or managers notice any changes in complainant’s behavior at work or in the alleged harasser’s treatment of the complainant?

15. Has the alleged harasser been accused of harassment by other employees? If so, when, and were the allegations investigated? If so, what was the result of the investigation, and what was management’s response, i.e., what remedy was imposed?

Did the work environment become hostile?

To ascertain whether unwelcome conduct creates an unlawful hostile environment, the major inquiry is whether the conduct had the purpose or effect of unreasonably interfering with an individual’s performance or creates an intimidating, hostile, or offensive working environment.  In the sexual harassment context, trivial or annoying conduct such as sexual flirtation or innuendo or vulgar language would probably not establish a hostile environment, but in certain circumstances the conduct when viewed in the aggregate can establish a hostile environment.. The challenged conduct must substantially affect the work environment of a reasonable person for a violation to be found.

Consider the following additional questions for this part of the inquiry:

1. What effect, if any, did the alleged harassment have upon the complainant’s ability to perform the complainant’s job?

2. What effect, if any, did the alleged harassment have upon the complainant’s mental or physical health or well-being? Was medical treatment/therapy sought? 

3. Even if the alleged harassment had little, or no effect on the complainant’s work performance or well-being, is there evidence, e.g. verbal or written comments, that the alleged harasser intended the conduct to have that effect?

4. Additional question for sexual harassment complaints: What was the sexual character of the work environment before the complainant entered the environment? Were sexual comments and actions common? If so, what types, when did they occur? Who was involved? Supervisors? Co-workers?

5. Did the character of the workplace change after complainant joined the workplace? If so, how? What was complainant’s behavior? How did the alleged harasser and other co-workers or supervisors respond to complainant’s behavior?

6. Was the complaint of verbal or physical behavior directed at persons other than complainant? If so, who were they? What conduct was directed towards them, when, how frequently, who was present, where did it occur and who witnessed it? How did these persons react to the physical or verbal conduct?

7. Did the alleged harasser single out the complainant? If so, how, when, where, and why?

8. Did others join in perpetrating the harassment? If so, who? What was done; when, where, who witnessed the conduct, and were others harassed too?

9. If the complained of conduct was verbal, what were the remarks? Were they hostile and derogatory? What was the frequency and context of the comments? Were the parties inside or outside of the workplace when the comments were made?

10. Was the alleged harassment observed by supervisors, managers, or other co-workers? If so, by whom, when, where, and what was observed?

11. Was the alleged harassment observed by former employees or others outside the workplace? If so, by whom, when, where, and what was seen?

Was the harassment committed by a supervisor?

The employer will be held responsible for acts of harassment committed by the employee’s supervisor, meaning someone who was authorized by the employer to have authority over the complainant’s terms and conditions of employment. To investigate harassment committed by the complainant’s supervisor, include questions such as the following:

1. What conduct is the supervisor accused of? When, where, how often did it occur, and who observed? 

2. Was the supervisor authorized to grant or deny tangible job benefits to the complainant? If so, what was the scope of that authority and what documents evidence it? If not, were the supervisor’s recommendations concerning the complainant’s terms and conditions of employment typically or routinely followed?

Was the harassment quid pro quo (do this for that)?

An employer will be held responsible for acts of quid pro quo sexual harassment, meaning that tangible job benefits were either (1) conditioned on submitting to sexual favors, or (2) denied because of the complainant’s rejection of a sexual advance or request for sexual favors. Quid pro quo-type harassment can also occur in other contexts, such as religious discrimination, for example, if a person is required to abandon or alter his or her religious practice as a condition of employment.

1. How was the complainant’s employment affected by the alleged harassment? Was the complainant denied a salary increase, a promotion, a job transfer, etc.? If so, when?

2. Was the complainant treated differently from similarly situated employees in regard to the denied salary increase, promotion, job transfer, etc.? If so, who was treated differently by this same supervisor?

3. What other management employees were involved in decisions to grant or deny the tangible job benefit(s) to the complainant? Did they have knowledge of the sexual conduct?